was the duty of defendant to take due and proper care of B. S.; and charged, that defendant did keep and confine B. S. in a dark, cold and unwholesome room, and did also neglect and omit to provide and furnish B. S. with proper and requisite clothing, and did suffer the body of B. S. to be foul, &c. :-Held bad, first, for not showing a duty in defendant to take care of B. S.; secondly, for not alleging that any injury was actually produced to B. S. by the acts of commission and omission charged, nor shewing that it was a necessary or probable consequence of them. Reg v. Pelham, INFANT. 399 Where a mother has maintained her infant child without the order of the court, upon his decease she is entitled only to such sum for his past maintenance as will effectually indemnify her for what she has spent, without reference to the amount of his fortune. Such sum, in the event of there being several funds applicable to his maintenance, is first payable out of the income of that fund which it would have been most beneficial for the infant, if living, to have so applied. Bruin v. Knott, 73 An infant plaintiff who repudiates a suit on coming of age is not entitled to costs, unless the suit has been improperly instituted. Appleyard v. Oures, INJUNCTION. 429 security for advances, obtained the same on a promise of other indemnity, and departed from New-York to go to Liverpool, on the 11th of March, 1841, in the steamship President. Nothing was ever heard of the ship or of any person who sailed in her, after she left the harbor of New-York. In April, and again in May, 1841, J.'s attorney placed securities in the hands of O. for the promised indemnity, and directed O. to pay the surplus to W., to whom J. was largely indebted, to which O. agreed. In August, 1841, adininistration was granted on O.'s estate. There being a surplus, it was claimed from O. by W., and by the administrator of J., and each sued O. at law for the same. The administrator did not question O.'s right to the indemnity. Held, 1. That it was a proper case for a bill of interpleader by O. against the rival claimants 2. That J. is presumed to have been lost at sea. before May, 1841, and the powers of his attorney were thereby terminated. 3. That the administrator was entitled to the surplus. Held, also, that O. was under no personal obligation to pay the surplus to W. Facts, which are a part of the experience and common knowledge of the day, are legitimate grounds for the judgment of the court. This principle applied to the usual duration of voya ges across the Atlantic by steam and other packet ships. It is no objection to a bill of interpleader, that the complainant has an interest in respect of other property not in the suit, but which might be litigated, that one party rather than the other should succeed in the interpleader, so as to increase his own chance of success in respect of such other property. Such interest may be termed an interest in the question, but not in the particular suit, and does not prevent one from filing an interpleader. If, however, the complainant is liable to either party, in respect of the specific fund in dispute, beyond the question of property, or makes claime on the fund which either of the defendants contests, it is not a proper case for an interpleader. Oppenheim v. Wolfe and the public adm'r, 259 defendant who had purchased certain goods, received notice from a third party that the goods belonged to him. The vendor sued the defendant for the price of the goods, and the claimant sued the defendant in trover. A Held, that this was not a case in which the defendaut could be relieved under the Interpleader Act. Slaney v. Sidney, When by the rules of a society, a salaried officer is bound to pay money received by him by virtue of his office to the treasurer of the society, and he retains such money in discharge of arrears of his salary, alleged by him to be due, the court will restrain him from further acting as such salaried officer. Shaw v. Hill, 25 At the time of chartering the Union Bank of Florida, the expedient was resorted to of procuring from the legislative council bonds of the territory, secured by bond and mortgage of the stockholder, to the amount of shares subscribed for by him, to be negotiated in the foreign market; and through these the money was procured by the bank, to enable the stockholder to pay his shares, so as to raise its capital. It was procured from foreign capitalists by a sale of the bonds. A judgment having been obtained by the bank on a stock note, certain negroes, under mortgage to secure the payment of the notes in question, were levied upon at the instance of the bank, Costs-set off-security for costs. Payne v. Hathwhereupon an application was made for an injunction to stay the sale under the execution. Held, that the bank must be considered a trustee for the bondholder of the property in question, and could, therefore, not proceed to a sale without committing a breach of trust; and an injunction was accordingly granted. Edwards v. Union Bank of Florida, Waste-parties-affidavit. Hunter v. Nockolds, 313 INTERPLEADER. 173 J., having placed goods in the hands of O., as a away, JUDGMENT. JUSTICE'S COURT. 284 21 147 Removal of causes-irregularity in proceedings. a right, if proven, could have no possible influence upon the legal rights of the parties litigant. Witter v. Blodget, 263 The court of common pleas will not reverse a justice's judgment where a justice changed the date of his docket, after he had received a verdict of a jury, entered it in his minutes, and rendered judgment. The act being extra-judicial is not a ground of error. Where a justice issues a venire and a constable returns the names of twelve jurors as summoned, only six of whom appear on the return of the venire, the judgment will not be reversed because the justice, instead of depositing the names of the six who appeared, deposits the names of the twelve summoned, when the six who appeared were the only persons who were drawn out of the ballot box and composed the jury. The question as to what imperfections and omissions in the proceedings before a justice may be disregarded by the court on certiorari, discussed and considered. Smith v. Smith, 106 Where a judgment is rendered on a trial in a justice's court in favor of the defendant, he is entitled to a judgment for the costs. Bush v. Hewett, LANDLORD AND TENANT. 384 A., who held premises under B., as tenant, from year to year, died, leaving his widow in possession, who continued to pay her rent quarterly to B., with the knowledge of C., who had taken out administration to the deceased and never desired it to be paid to himself:-Held, that there was no ground for presuming either that the widow had acquired a tenancy from year to year under the administrator, or that the administrator had, by operation of law, surrendered his estate so as to constitute her tenant to B. The holding premises under a mere permission to occupy, only constitutes a tenancy at will. In order to create a tenancy from year to year, there must be circumstances to show such to have been the intentions of the parties; as, for instance, that the rent was payable quarterly, or at some aliquot part of a year. Doe dem. Hull v. Wood, Occupation, and the mere payment of an aliquot portion of an annual rent at the expiration of a quarter, is not sufficient evidence of a yearly tenancy. Clemmett v. Bradbee, See Trover. LEASE. 244 278 of the husband. Chambers v. Whiteside, 156 A testator bequeathed certain property to trustees upon trust from time to time during the life of S. B., (a married woman,) to pay the clear rents, interest, dividends, &c., unto such person or persons, for such intents and purposes, &c., as the said S. B., by any writing, &c., should appoint, but not by way of assignment or other anticipation; and, in default of appointment, into her proper hands, for her sole and separate use; the receipts of S. B. or her appointees to be good discharges to the trustees. Held, (reversing the judgment of the Vice Chancellor of England.) that the general limitation in default of appointment did not enable S. B. to anticipate; and that the case did not depend on the form of the receipt clause. Brown v. Bamford, 309 The court will not grant a new trial on the ground of the jury having given a smaller amount of damages than the justice of the case might have warranted. Manton v. Bales, 286 When the jury have found for the plaintiff, the court will not grant a new trial on the ground that the damages are insufficient to carry costs, and less than the facts might have warranted. Gibbs v. Tonaley, ib. Where a feigned issue has been awarded by a court of chancery to try the genuineness of a receipt, involving the question of payment on a bond, a new trial ought not to be granted solely on the ground that the judge who presided at the trial doubted the correctness of the finding of the jury on the question of fact. To entitle a party to a new trial in such case, it should appear that the verdict is so clearly against the weight of evidence as to entitle the party to a new trial in a court of law. Fellows v. Harrington, 340 NOTICE OF ACTION. Where a statute requires notice of action for any thing done in pursuance of it, such notice must be given in all cases where the party acts under PARTIES. 279 a bona fide, though mistaken belief, that what he | Held, sufficient. Rennie and an'r v. Beresford does is in pursuance of the statute. Therefore, aud others, where a statute enabled the owner of land, or his servants, to seize the rods and lines of any person unlawfully fishing thereon, and the servants of P. seized the rod of a person fishing on land which they believed was P.'s, but which in fact was not. PAROL AGREEMENT FOR SALE OF LANDS. The payment of part of the price is not such an act. By the statute of limitations of Maine, in an action on a mutual and open account current, the right of action for the whole balance is deemed to have accrued at the time of the last item proved in the account. But if a party sleeps on a demand without entering it on his account, until the period of limitation is elapsed, he cannot extract it from the statute, by entering it afterwards on his account. Where a party has an unliquidated demand, the limitation begins to run from the time when the right of action accrues. But if the parties, after the right of action has accrued, come to a settlement, and determine the sum due by mutual agreement, the limitation begins to run from the time of such settlement. Exparte Storer, 379 PARTICULARS OF DEMAND. In an action by an engineer against a railway company, the particulars of the plaintiff's demand claimed one gross sum, for surveying, travelling expenses, assistance, &c. Where one of two executors proves a will, power being reserved to the other to come in and prove, the probate on the death of the executor enures to the other; and it is not necessary, therefore, in a suit for the administration of the testator's estate to bring before the court any other personal representative than the surviving executor. Howard v. Gash, PARTNERSHIP. 429 The court will not, on a bill filed by a partner for an account of partnership transactions, order payment into court of a balance admitted by the defendant to be due from him to the partnership, unless he admits the amount to be in his hands. Bradley v. Teale, 431 PATENT. Patent for the invention of a nipping lever for causing the rotation of wheels, shafts, or cylinders, under certain circumstances. The specification claimed as the invention "the nipping lever, with its tusk and sliding box, (before described,) applied to a rimmed wheel, or to a rimmed flange, for the purpose of causing the same to rotate or move together with any shaft, cylinder, or other suitable machinery, which may be attached thereto." The nipping lever was not new, but the application of it by means of the sliding box was new:-Held, that it must also appear that the use of sliding boxes was essential to the invention. Pow v. Taunton, PAYMENT OF PURCHASE MONEY. 205 congress, or words purporting the same, every person so offending shall forfeit and pay one hundred dollars, one moiety thereof to the person who shall sue for the same, and the other to the use of the United States, to be recovered by action of debt in any court of record having cognizance thereof." F. and A. declared jointly in an action, commenced on behalf of themselves aud the United States against C.; C. demurred thereto on the ground that an action to recover such penalty could only be brought by one person qui tam. Held, that the penalty given by the act could not be recovered by more than one person. Held, also, that a declaration for such penalty in the name of two persons is bad on general demurrer. Ferrett & Arthur qui. tam. v. Atwill, 294 PLEADING. In an action by the commissioners of highways, to recover the penalty given by statute for obstructing an highway, commenced in a justice's court, where the defendant interposes a plea of no highway, and issue is taken upon that plea, such a plea involves a question of title to land, which. upon a compliance by the defendant with the directions of the statute, ousts the justice of jurisdiction. In such case, when an action is subsequently commenced in the common pleas for the same cause of action, and the same issue is joined in that court, and the plaintiff obtains a verdict for $5 debt, the plaintiff under the statute is entitled to full costs, notwithstanding the recovery is less than $50. Southworth et al, comm'r of highways, &c., v. Straight, 19 33 Declaration in assumpsit. Plea in bar, bad. Harris v. Reynolds, Where a declaration in debt gives credit for part payment, the allegation is not traversable.Hodgkins v. Hancock, 43 Plea of accord and satisfaction. Nevins v. Deperries, 70 Variation between declaration and contract. De Fries v. Littlewood, 119 Statute of limitations-pleading. Fannin v. An 141 In an action against a broker for the proceeds of a note left with him for collection, the plaintiff cannot recover under the money counts, unless it appear that the money has been received by the defendant. Peck et al v. Taylor, Where A. deposits a chattel with B. as a security for the repayment of a debt, and an agreement to that effect is entered into between them, and A., by his own wrongful act, and in violation of the terms of the agreement, resumes possession of the chattel: 157 Held, that the lien or special property, which the defendant had in the chattel, was not terminated by the wrongful act of A. Richards v. Symonds, If to an action for goods sold and delivered a general release be pleaded, the plaintiff is not, under a replication of "non est factum," entitled to show that the debt specified in the particulars of demand, and in respect of which the action is brought, was excepted from the operation of the release, and in order to do so a new assignment is necessary. Jubb v. Ellis, 163 If a plea of nul tiel record conclude to the country, 164 the plaintiff may reply without regard to the improper conclusion, and is not bound either to join issue to the country, demur, or move to strike out the improper conclusion; and a demurrer to a replication, upon the ground of its having disregarded such a conclusion, was set aside as frivolous. Townsend v. Smith, Endorsee against acceptors of bills of exchange. Declaration stated that the bills were endorsed to the treasurer of the treasury royal of Portugal, and that C., then being treasurer, endorsed the bills to plaintiff.-Pleading-averment-traverse. Soarez v. Glyn. A 199 declaration for breach of promise of marriage, alleged a promise to marry within a reasonable time after request; and that the defendant, after making the promise, had married another person, not stating she was then alive, and not alleging that any request to marry had been made by the plaintiff. The defendant pleaded that no request had been made. Held, the declaration was good, and the plea bad. Short v. Stowe, 202 In an action of assumpsit, the plaintiff cannot, under a general replication of not indebted modo et forma, to a plea of set-off, give evidence of his discharge under the insolvent debtor's act. The discharge ought to be specially pleaded. Ford v. Durnford, 235 In an action on a policy of insurance, the defendants, being under terms to plead issuably, pleaded that the case had been submitted to arbitration; that the arbitrator had made his award; and payment into court of the sum so found due from the defendants. Held, this was an issuable plea. Heap v. Thorp, 236 In a declaration in assumpsit for not transferring certain railway shares, the plaintiffs alleged that, although they had always, from the time of the making of the agreement, been ready and willing to accept the transfer, and to pay for the same, whereof the defendant had notice &c., yet the defendant did not nor would transfer:-Held, that a plea traversing the whole of this allegation was bad. Held, also, that the declaration was good. Temp. est v. Kilner, 242 314 PRODUCTION OF DOCUMENTS. -parties. Sweet v. Hunter, PROMISSORY NOTE. 27 upon two judgments for more than was due upon them respectively. Pleading-false imprison-Refusal of court to order production of documents ment. De Medina v. Grove, In all cases of bailment, the duty of the bailee may be alleged in the declaration to be "safely and securely" to keep, &c., the goods entrusted to him. Ross v. Hill, 320 In debt for goods sold, defendant is not entitled to have the verdict entered for him on a plea of never indebted, though the jury find that the sale was not upon credit. Littlechild v. Banks, 324 In an action against one of several joint contractors, the defendant cannot plead in abatement the pendency of another action for the same cause against another of the joint contractors, and in which he was not himself a defendant. Henry v. Goldney, Pleading-coverture. Guyard v. Sutton, 324 367 Slander-pleading-averment-inuendo. Griffith v. Lewis, Alfred v. Farlow, 391 396 The plea to a bill of exchange alleged an agreement 401 402 Right to begin in actions of tort. Mercer v. Whall, 204 PRIVILEGED COMMUNICATION. Where there is a dispute, and one of the parties consults an attorney, solicitor, or counsellor, on the subject, the communications between such party and his legal advisers are sacred, and the courts will not permit them to be divulged without the client's consent. And there is a dispute when there are conflicting rights in existence, or claims made to the same property, which, unless abandoned by one party or the other, or arranged amicably, will terminate in litigation. March v. Ludlum and or's, 216 A solicitor may demur to interrogatories relating to the reserved bidding, and other particulars of the nature and value of property sold by him for his client; and communications from the latter to him through an agent, are privileged. Carpmael v. Powis, 269 M. S., a resident of Florida, being temporarily at Troy, in this state, made a note payable one year after date, which was endorsed by A. S., a resiident of Troy, the maker immediately thereafter returning to his residence in Florida. When the note fell due the holder gave to A. S. due notice of non-payment. Held, that A. S. was charged as endorser, though demand of payment had not been made of the maker at his residence in Florida. Taylor v. Suyder, 16 In an action against the maker and endorsers of a note under the statute, they cannot set off the same claim without proof that they are jointly interested in it--but if one defendant establishes a set off to the amount of the plaintiff's claim, all the defendants are entitled to judgment. Thompson et al v. Hooker & Gillies, 17 Joint and several liability of partners. Clark, Where a negotiable prommissory note is transferred by the payee to a boda fide purchaser for value before due, he acquires a perfect title, which enures to the benefit of any subsequent holder, who may collect it, although he takes it with notice that the original consideration was fraudulent. Shell and Bellinger v. McKenzie, 307 The declarations of the payee of a note are not admissible in an action by the endorser against the maker, for the purpose of showing that the note was negotiated when past due. Witter v. Blodgett, 263 A declaration for use and occupation consisted of several counts for rent, work done, money paid, money lent, and an account stated, and the same sum was claimed in each count. The defendant pleaded, except as to £7 parcel of the monies in the declaration mentioned, non-assumpsit; and as to the sum of £7 parcel, &c., a tender of that sum. The evidence was, that the sum of £7 was all that was due, and that it was tendered in respect of the rent claimed in the first count of the declaration. Robinson v. Ward, 432 ་ ་ ་ ་ Railway scheme-fictitious scrip. Lamert v. Heath, RESTRAINT OF TRADE. 366 Green 167 |